| Item 5.02 |
Departure of Directors or
Certain Officers; Election of Directors; Appointment of Certain Officers; Compensatory Arrangements of Certain Officers. |
Amended
and Restated Employment Agreement with Michael Crawford
On
November 22, 2022, the Company and HOF Village Newco, LLC entered into an amended and restated employment agreement with Michael Crawford,
the Company’s President and Chief Executive Officer (the “Amended and Restated Employment Agreement”), effective as
of January 1, 2023 (the “Effective Date”). The Amended and Restated Employment Agreement was approved by the Company’s
Board on November 17, 2022. The Amended and Restated Employment Agreement on the Effective Date supersedes Mr. Crawford’s existing
employment agreement with the Company, dated July 1, 2020, as amended, the initial term of which was due to expire on December 31, 2022.
The
initial term of the Amended and Restated Employment Agreement ends on December 31, 2027 (the “Initial Term”) and will be
automatically extended for additional 12-month periods, unless the Company or Mr. Crawford gives prior written notice of non-renewal
of the Amended and Restated Employment Agreement at least 90 days in advance of the expiration of the Initial Term or the then-current
12-month period (the Initial Term, as may be automatically extended as provided herein, the “Term”).
Mr.
Crawford’s annual base salary under the Amended and Restated Employment Agreement shall be $950,000 through December 31, 2023 and
$975,000 from January 1, 2024 through December 31, 2024. For any years thereafter during the Term, the annual base salary shall be determined
by the Compensation Committee of the Board based on the Company’s and Mr. Crawford’s achievement of performance metrics as
agreed-upon in writing by the Executive and the Compensation Committee of the Board. In addition, for each calendar year during the Term,
Mr. Crawford will be eligible for an annual bonus. The target for the annual bonus will be 100% of Mr. Crawford’s annual base salary
for that calendar year, and the maximum annual bonus will be 150% of Mr. Crawford’s annual base salary for that calendar year.
Mr. Crawford shall be eligible for stock awards during the Term at the discretion of the Compensation Committee of the Board. During
the Term, Mr. Crawford will be entitled to participate in such employee benefit plans of the Company as the Company may provide from
time to time to its employees generally. Additionally, the Amended and Restated Employment Agreement provides Mr. Crawford with a vehicle
allowance to reimburse Mr. Crawford for the lease expense of a vehicle with a retail value of up to $90,000.
In
the event that Mr. Crawford is terminated for any reason, he will receive a lump-sum payment equal to the amount of earned and unpaid
base salary through the termination date and any unreimbursed business and entertainment expenses that are reimbursable through the termination
date. In the event of (i) termination by the Company without cause or (i) by Mr. Crawford for good reason (other than as described in
the next sentence), the Company shall: (i) pay Mr. Crawford a severance payment in the amount of $950,000, less applicable deductions
and withholdings, payable in a single lump-sum payment within 30 days after the date that the release signed by the executive becomes
effective and irrevocable, and (ii) reimburse Mr. Crawford, on a monthly basis, for the excess of the premium for coverage under the
Consolidated Omnibus Budget Reconciliation Act of 1985, as amended (“COBRA”), for himself and his covered dependents over
the amount paid by active employees for the same coverage during the period from the termination date through up to the 12-month anniversary
of such date. In the event of termination by the executive for good reason because of substantial interference with the day to day operations
of the Company by a director of the Company (or such director’s employer or affiliate) that is inconsistent with formal actions
taken by the Board or that impairs the executive’s ability to deliver agreed upon results for the Company, the Company shall pay
the executive a severance payment in the amount of $950,000, less applicable deductions and withholdings, payable in a single lump-sum
payment within 30 days after the date that the release signed by the executive becomes effective and irrevocable.
The
Amended and Restated Employment Agreement also provides for non-solicitation and non-competition during the Term and for twelve and six
months, respectively, thereafter; provided, that if Mr. Crawford terminates for good reason, then the non-competition obligation will
extend twelve months after the Term. The Amended and Restated Employment Agreement further provides for confidentiality during the Term
and surviving the end of the Term.
The
foregoing description of the Amended and Restated Employment Agreement does not purport to be complete and is subject to, and qualified
in its entirety by, the full text of the Amended and Restated Employment Agreement, which is attached as Exhibit 10.1 to this Current
Report on Form 8-K, and is incorporated herein by reference.
Retention
Bonus Award Agreements
On
November 22, 2022, the Company entered into retention bonus award agreements (the “Retention Agreements”) with Benjamin Lee,
Chief Financial Officer; Michael Levy, President of Operations; and six other officers (collectively, the “Participants”).
The Retention Agreements provide for a retention cash bonus (“Retention Bonus”) equal to, at the Company’s sole discretion,
up to 100% of a Participant’s annual base salary on the Vesting Date (defined below) less applicable tax withholdings and deductions,
provided that the Participant remains continuously employed by the Company or a subsidiary thereof through the date (the “Vesting
Date”) that the Company completes Phase II of its development plan, consisting of two hotels (one on the Company’s campus
and one in downtown Canton), an indoor waterpark, the Constellation Center for Excellence, the Center for Performance, the Play Action
Plaza, and the Hall of Fame Retail Promenade. The Retention Bonuses were approved by the Company’s Board on November 17, 2022.
Retention Bonuses are payable by the Company within 60 days after the Vesting Date. A Retention Bonus is forfeited if a Participant’s
employment at the Company or a subsidiary thereof is terminated for any reason.
The
foregoing description of the Retention Agreements does not purport to be complete and is qualified in its entirety by reference to the
form of Retention Agreement attached hereto as Exhibit 10.2 and incorporated herein by reference.
Forward-Looking
Statements
The information in this Form 8-K above includes “forward-looking statements” within the meaning
of Section 27A of the Securities Act of 1933, as amended, and Section 21E of the Securities Exchange Act of 1934, as amended. All statements,
other than statements of historical facts, included herein are forward-looking statements. These forward-looking statements may be identified
by their use of terms and phrases such as “may,” “expect,” “believe,” “intend,” “project,”
“plan,” “will,” “should,” “could,” “continue,” “regain,” “extend,”
“remain,” “maintain,” and “cease,” and similar terms and phrases. Although the Company believes that
the expectations reflected in these forward-looking statements are reasonable, they do involve certain assumptions, risks and uncertainties.
These forward-looking statements represent the Company’s current expectations or beliefs concerning future events, and it is possible
that the results described in this Current Report on Form 8-K will not be achieved. For example, there can be no assurance that the Company
will regain compliance with the Minimum Bid Requirement during the second 180-day compliance period or otherwise in the future, otherwise
meet Nasdaq compliance standards, or that Nasdaq will grant the Company any relief from delisting as necessary or whether the Company
can agree to or ultimately meet applicable Nasdaq requirements for any such relief. Furthermore, there can be no assurance the Company
will complete all the elements of its Phase II development plan as currently contemplated. These forward-looking statements are subject
to certain risks, uncertainties and assumptions identified in this Form 8-K or as disclosed from time to time in the Company’s other
filings with the Securities and Exchange Commission (“SEC”). As a result of these factors, actual results may differ materially
from those indicated or implied by forward-looking statements. The Company undertakes no obligation to update or revise any forward-looking
statements, whether as a result of new information, future events or otherwise, except as required by law.